Many K-12 schools ban or restrict the use of cellular phonesin school. Imagine that you attend a school with a strict no-cell phone policy:phones can’t be turned on during school hours, and you can’t use your phone totext or to access social networking sites while at school. Can your schoolconduct a search to determine which students are violating this rule? If schooladministrators find out that students have been using phones during school, canthey search the phones to see who the students have called or texted, or whatwebsites they’ve visited?

School searches and seizures of students’ cell phones arebecoming increasingly common. The confiscation of phones is of special concernto student journalists, because “smart” phones are becoming the Swiss Armyknife of newsgathering, capable of shooting photos and video, recordinginterviews, and holding endless virtual pages of notes.

While administrators often argue that searches are necessaryto protect students from harassment and to protect the school from liability,the searches also impact student privacy rights. This article will describe thecurrent law on cell phone searches and seizures, and explain why many schoolpolicies and practices are skirting on the edge of what is constitutionallyallowed. It will also offer some practical tips for how to intelligently assertyour rights if your phone is searched or seized, especially if you are usingthe phone as a newsgathering tool.

Student privacy vs. student protection

Because public schools are government agencies, theirability to seize and search property is limited by the Fourth Amendment. TheFourth Amendment provides that people have a right to be free from unreasonablesearches and seizures.[1] This rightapplies to minors as well as adults; however, the question of what constitutesan “unreasonable” search and seizure in a K-12 school is different from what is“unreasonable” in the adult world.

Outside of school and for all adults, law enforcement needsto show “probable cause” before a person’s possessions may be searched.“Probable cause” essentially means that the person conducting the search(usually a police officer) must have a reasonable belief that the person orplace to be searched is concealing evidence of a crime.[2] In contrast, school administrators need onlyshow “reasonable suspicion” before they may search a student’s possessions. Toshow “reasonable suspicion,” school administrators don’t need the same level ofcertainty that would be required to establish probable cause.[3] Thus, although “reasonable suspicion” maysound similar to “probable cause,” courts have acknowledged that it is a lessexacting standard. What constitutes a “reasonable” suspicion in the schoolcontext depends on the dangerousness of the suspected offense and the certaintyof the information that the school has.[4] Importantly, having a “reasonable suspicion” means that administrators must bereasonably certain that their search will turn up something related to a ruleviolation or a crime.

Requiring that government agents have a provable factualbasis to believe that a rule or law has been broken before conducting a searchhelps protect people from unconstitutional invasions of privacy. The courtshave developed standards such as probable cause and reasonable suspicion as ameans of balancing public safety against personal privacy. Some schools,however, are stretching these limits with policies that push student privacyinto the background when it comes to the contents of cellular phones.

Troubling occurrences

Changes in technology are presenting greater opportunitiesfor conflicts over student privacy. A generation ago, book-bags and lockerswere the center of disagreements over the scope of schools’ search-and-seizureauthority. Today, advancing phone technology has given students the ability tocarry around vast amounts of information, as well as to communicate throughtexts, chats and Facebook messages.

Now that students can send instantaneous electronic messages,administrators fear that harmful communication, such as harassment or bullying,will proliferate. Schools have responded to this perceived threat by adoptingpolicies and practices that increasingly encroach on students’ personalprivacy. In recent years, administrators have attempted to access studentinformation in new and unprecedented ways, including punishing students whorefuse to provide the information requested.

In one recent example, a high school cheerleader inMississippi was told that she needed to provide her Facebook login informationto her coach as a condition of remaining on the cheerleading squad.[5] Mandi Jackson was disciplined after her coachlogged into Jackson’s Facebook account and read private electronic messages inwhich the student criticized a classmate. The school justified the coach’sbehavior by saying that the coach was looking at all team members’ social mediapages for evidence of alcohol or drug use.

The Jackson case exemplifies the aggressiveness with whichsome schools have probed into their students’ electronically documented privatelives, even where there is no particular reason to believe that a law or rulehas been violated.

In 2010, a school in Virginia sought guidance from thestate’s Attorney General, asking whether a teacher could confiscate and searcha student’s phone if a classmate complained that the student had sent aharassing text message.[6] Attorney GeneralKen Cuccinelli responded that the teacher’s actions would not violate thestudent’s Fourth Amendment rights; however, he went further, noting thatsearches of student cell phones and laptops were permissible whenever they werebased on reasonable suspicion that the student was violating the law or schoolrules.

Although Cuccinelli did say that the scope of the searchmust be “reasonably related to the objectives of the search and not excessivelyintrusive in light of the age and sex of the student and the nature of theinfraction,” the broad language of his opinion gave wide license for schoolofficials to search student electronic devices anytime they believe any law orrule has been violated, even one not requiring the use of a phone. (While itseems likely that the Attorney General intended that the law or rule violationshould somehow relate to actions taken with the phone, he did not employ suchlimiting language in his opinion. Read literally, the opinion could give anadministrator the green light to search a student’s phone even if the studentis simply tardy or is walking the halls without a pass.)

Although the Virginia opinion is merely advisory and affectsonly one state, many schools across the country have adopted similarly wordedpolicies that are comparably overbroad or that fail to address the extent towhich a student’s phone may be searched. For example, the policy at one high school near Bakersfield, Calif.,provides for the confiscation of phones if students bring them to school;however, the policy does not state whether and how a school official may searcha seized phone.[7] Without guidance orlimitations, administrators may feel free to search confiscated phones as theysee fit.

A more balanced policy can be found at Linden Unified SchoolDistrict, another California district. Linden’s policy states thatadministrators may not read private text messages stored on students’ phonesunless there is “good reason to believe” that the search will show that astudent has violated a law or school rules.[8] Even if good reason exists, the policy requires that the search be limited tothe alleged infraction that led to the phone’s seizure. This means, forexample, that administrators cannot search all of the text messages on astudent’s phone if the infraction is merely having the phone switched on duringclass. Precisely worded policies that place limitations on the extent to whichadministrators can search more closely adhere to the balance struck by theFourth Amendment.

A split in the courts

Some of the lack of clarity in schools’ approach to theprivacy of cell phones can be attributed to the failure of federal courts toset down clear constitutional standards. Courts have reached differing resultswhen analyzing the constitutionality of cell phone searches, whether in schoolsor in the off-campus realm of citizen/police encounters.

In 2006, a district court in Pennsylvania heard a case inwhich a teacher confiscated a student’s phone after the student displayed itduring school hours, in violation of school policy.[9] The teacher and assistant principal proceededto use the phone to call nine other students listed in the student’s directoryto ascertain whether those students also had their phones on in school. Theadministrators also searched the student’s text messages and voicemail, andheld an instant message conversation with the student’s younger brother. Thecourt denied the school district’s motion to dismiss the case, holding that thestudent stated viable claims that his rights had been violated.

In contrast, a court in Mississippi recently held that, uponwitnessing a student improperly using a cell phone at school, it was reasonablefor school officials to conduct a relatively extensive search of the phone. Inthat case, J.W. v. DeSoto County School District, ateacher saw the student using a cell phone and confiscated the phone.[10] Although the teacher suspected no furtherwrongdoing by the student, he opened the phone and viewed the pictures storedon it. Several pictures depicted the student dancing in his home bathroom, andone of them showed another student holding a BB gun. After viewing the photos,the teacher ordered the student to the principal’s office, where the studentwas punished for the content on his phone.

The court declined to overturn the discipline. The judgereasoned that the student’s phone was contraband the moment it was brought oncampus. Consequently, school officials could use the phone to determine to whatend the student was improperly using it, and that their search of the phone’sphotos was not unlawful.

The U.S. Supreme Court has not yet weighed in on the subjectof searching and seizing phones in school. But the Court’s most recentschool-search case gives some idea of the standards that the justices wouldapply if a student challenged a search under the Fourth Amendment.

In Safford Unified School District v.Redding,[11] the Court decidedthat Arizona school administrators violated the Fourth Amendment bystrip-searching an eighth-grader who, according to a tip, was believed to becarrying ibuprofen pain-relief pills. The Court ruled that the legality of asearch varies according to: (1) the severity of the intrusion on privacy, (2)the reliability of the school’s information, and (3) the dangerousness of theitem that is being searched for.

According to the standards set forth in the Reddingcase, it should be more difficult for a school to justify searching trulyprivate material on a cell phone (such as text messages between individuals) asopposed to non-private material, such as postings to a publicly viewableFacebook wall. And the intrusion will be easier to justify if the schoolbelieves that the messages involve dangerous behavior – for example, arranginga drug deal or a fight.

Courts have not decided many school cell phone search cases,so often it is logical to analogize to searches of adults’ phones to determinewhether and to what extent a student’s phone may be searched. Yet, the courtsare clearly divided about whether law enforcement may search a cell phonewithout first obtaining a search warrant.

For example, the California Supreme Court has held that lawenforcement may search a phone without a warrant during an arrest of anindividual because the phone is the arrestee’s personal property, and personalproperty may be searched incident to an arrest (for example, the trunk andglove box of a car may be searched after a car is towed and impounded).[12]

In contrast, the Ohio Supreme Court has held that unless anofficer’s safety is at stake or there is an emergency, the Fourth Amendmentprohibits warrantless searches of cell phones seized during an arrest.[13] The court reasoned that a cell phone’sability to store extensive data gives owners a higher level of privacy, thusnecessitating a warrant before a search can be performed. Overall, aboutthree-fourths of the publicly available court rulings have taken the side ofthe California court, while the rest follow the approach of the Ohio court.[14]

This division in the courts indicates a need for clear rulessetting out when and how extensively a phone can be searched. Until suchconstitutional standards are clarified, schools will be left to make policy ontheir own, and at least some are likely to overreach and allow for the contentof phones to be searched even when administrators have no reasonable suspicionthat the phone is related to a violation of a school policy or rule.

Policy arguments against searches

Legally, schools’ ability to take away and search phones islimited by the Fourth Amendment. But there are also significant public policyand practical arguments against giving administrators wide-open authority tolook through the content of students’ phones.

For example, giving administrators an unfettered license tosearch students’ possessions necessarily sets a questionable example forstudents. Schools are the government, and the message that government agentsget to read people’s private messages with little or no basis for suspicion islikely to breed distrust and cynicism.

Students who are experiencing family or emotional turmoilmay use their phones to reach out confidentially for help to a trusted friendor counselor. A student who believes that her phone is at risk of beingsearched and its messages read or played by school administrators may be lesslikely to get needed help. As phones can store increasingly more information,unlimited phone searches can probe very deeply into students’ lives. Studentsmay also use their phones for activity that they legitimately want to keepprivate from their school administrators for fear of retaliation, such asfiling complaints about the school or contacting legal counsel.

Additionally, many schools are awakening to the learningpossibilities that can be furthered through the use of phones, and programmers areconstantly designing educational apps for school use. Searching and seizingphones detracts from their emerging potential as classroom tools. In today’sworld, media literacy is a fundamental life skill, and in order to acquire thisliteracy, students must familiarize themselves with technology and learn to useit responsibly.

Student journalists face particular concerns when their cellphones are searched, as cell phones are increasingly becoming a journalist’snewsgathering tool of choice. As student journalists increasingly use theirsmart phones to communicate with sources and to store information, searches ofstudent journalists’ phones can reveal sensitive and confidential information.In addition to invading a journalist’s personal privacy, these searches alsopresent the risk that confidential sources and information will land in thewrong hands, thus compromising the journalist’s credibility and ability toproperly do her job.

What to do if your phone is seized

Although phone searches and seizures can be intimidating,students can take precautions to protect themselves.

As a student, it is critical to know your school’s policytoward cell phones. By doing so, you can both make sure that you are complyingwith it and also assess whether the policy is consistent with constitutionalprinciples. A policy that gives administrators total discretion to look atanything in a student’s phone for any reason is almost certainlyunconstitutional.

If you identify ways in which your school’s policy is constitutionallydeficient or simply overreaching, take steps to publicize these shortcomingsand to pressure your school district to adopt changes. Often, such policieshave been purchased as “one size fits all” standardized policies, and have beenenacted with very little input from those most affected.

In particular, it is advisable for the search policy toprohibit an administrator from conducting a search unless it is related to theparticular violation for which the phone was seized in the first place. Forexample, a student found violating a policy requiring all phones to be offcould not have his phone searched for any reason other than to determine thatthe phone was in fact on; once that is determined, then the search should end.

Even if the school’s policies look good on paper, they maystill not be carried out properly in practice. Once again, knowing the contoursof your policy will help you assert yourself if your phone is taken away andsearched in violation of the school’s own rules. As a journalist, you shouldask questions about the school’s seizure of phones. How often does it happen?Which school personnel are allowed to search the contents of phones, and whatstandards are they given? Do not be afraid to publicize searches that violateestablished school rules, as administrators must comply with the policies theyestablish.

As a journalist, if your phone is taken by a police officer(as opposed to a teacher or principal), then you may have additional legalprotections beyond the Fourth Amendment protection that every citizen enjoys.

A federal law, the Privacy Protection Act, limits the typeof journalistic material that can be seized by law enforcement without a courtorder.[15] The Privacy Protection Actprotects any place that a journalist stores work product, including inside of acell phone. Although the Act has never been applied in court to a studentjournalist, the law’s broad language clearly favors an interpretation thatincludes student journalists; in fact, Congress enacted the law in 1980specifically because of a search of a student newsroom at Stanford University.

If your phone contains unpublished photos, video, notes orinterviews gathered for a legitimate journalistic purpose and the police try totake it away, you should mention the Privacy Protection Act and – if the phoneis taken anyway – call a lawyer as soon as possible to try to prevent policefrom searching it.

The Privacy Protection Act, however, is limited. It probablydoes not apply if the person doing the search is not a law enforcement officeror working on behalf of a law enforcement agency. And there is an exceptionthat allows police to search without a court order if the journalist himself issuspected of breaking the law. So if the police are searching your phone becausethey believe that you made a threatening Facebook post or sent a threateningtext message, then the PPA may not help you.

Journalistic material stored in a phone may also beprotected by your state’s reporter privilege law, sometimes called the reportershield. Shield laws vary by state, but they usually allow a reporter to, at thevery least, refuse to give up the identity of confidential sources (and somelaws go much further and allow a reporter to refuse a demand for anyunpublished material, such as notes).

If you are concerned that your phone contains confidentialjournalistic material that would cause harm if it fell into the hands of schoolauthorities – such as compromising the identity of a confidential source – thenyou should claim the protection of the reporter’s privilege and (politely andcalmly) ask that you be given a chance to consult an attorney beforesurrendering the phone.

Finally, the photos and recordings that you have made with aphone are your property, and even if a school is legally entitled to search thephone, it is never permissible for a school to simply destroy a student’sphotos or other personal property. (Because many school employees don’t fullyappreciate – or respect – this legal principle, it’s a very good idea to backup any essential data from a phone, such as emailing yourself copies of newsphotos.)

Above all, if your phone is seized or searched, remain calm,and politely express your disagreement with the search, citing the law orschool policy if necessary. Do not try to interfere with or obstruct thesearch, but remember as much as you can about it so that you can report thedetails later. If you feel the search was in violation of your rights, reportit to higher-up school authorities or contact the Student Press Law Center forhelp.

Conclusion

Although schools are increasingly implementing invasivesearch and seizure policies, students need not feel intimidated. By becominginformed about the law and your school’s policies, you can stand up andknowledgeably defend your rights. Schools rarely are thinking about journalistswhen they make policy about cell phones – many administrators are not schooledin the journalistic uses of a smart phone. So you may have to educate yourschool about why, as a journalist, you have a special privacy interest in whatis recorded on your phone, and that you may be entitled to additional privacyprotection.

Attorney Laura Napoli, a former SPLC legal fellow, practices with the New York law firm Weil Gotshal & Manges.

Endnotes

1 U.S. Const. amend. IV.

2See, for example, Carroll v. UnitedStates, 267 U.S. 132 (1925) (allowing the warrantless search of anautomobile if there was probable cause to believe that evidence was present).

3New Jersey v. T.L.O., 469U.S. 325 (1985) (requiring that school administrators have a “reasonablesuspicion” before performing a search).

4Safford Unified School District v.Redding, 129 S.Ct. 2633 (2009) (holding that strip search of middleschool student violated the Fourth Amendment when school lacked reasonablesuspicion that over the counter drugs in student’s possession presented adanger or that drugs were concealed in student’s underwear).